Pinterest’s New Terms of Use Came Out. But, I’m Still Waiting :(

Pinterest’s new terms of use came out. 

Pinterest’s new terms of use came out.

Pinterest introduced it’s new terms of use.

 

I thought if I said a different way the third time I might be able to get behind Pinterest and re-establish my inspiration boards.

 

Unfortunately, it’s not as easy as just clarifying some language. 

 

I tried to explain to Ben that new language, without substantive changes to the site itself, would not solve the issues I see with the site.  Sure, with its new terms of use, Pinterest resolved the conflict stated within its previous rules.  In doing so it deleted the ban on self-promotion, which kindly opens the doors to photographers and artists to freely pin their own work without being labeled “tacky” or accused of poor etiquette.  This change at least allows the site to be used for some purpose – i.e, pin your own work.  But, frankly, because I’m a rebel or maybe I just have no class, I was doing that anyway.    As explained in my original post, the reason I deleted my inspiration boards where I pinned other’s work, is that I felt my own work is the only work I had the right to use —  not only per Pinterest’s terms but under the law.   So, now that these new terms are out I am being asked, “are you going to re-establish your inspiration boards?”

 

Unfortunately, no. 

 

Even though I’m pretty sure this is going to ensure that Ben never calls me again and that I will forever be the poster child for pinning paranoia, my concerns haven’t changed.  And here is why:  No matter how you say it, slice it, dice it, curse it or just disagree with it, U.S. Copyright law (and laws of many other countries) still says that you cannot reproduce the artistic creation of another.  And, while I have no doubts that Ben Silberman and his team are becoming quite powerful, they can’t change the law overnight (though I’m pretty sure sites like Pinterest are leading us down the slippery slope of copyright abolition for digital images online – but that’s another blog).  Because my inspiration boards would contain nothing but artistic creations by other photographers, most of whom did not give permission, I remain concerned that I would be violating the law.  Now, as I pointed out previously, there are exceptions to the prohibition on reproducing another’s otherwise protected work and these exceptions result in what is deemed “fair use.”  The fair use exception allows you to use copyrighted work in certain circumstances.   I’m not going to re-write my original post and the points about fair use.  As a good friend of mine says, “rinse and repeat.”

 

So, like before, I find myself looking to Pinterest’s NEW AND IMPROVED terms of use to see what they say about using content that isn’t mine.  And this time I don’t really find anything definitive.  No allowance (of course).  But no prohibition this time either.  No real guidance at all, except for this language: 

 

            “d.  Your responsibility for your content: …..

 

            …. ii.  To third parties.  Pinterest values and respects the rights of third party creators and content owners, and expects you to do the same.  You therefore agree that any User Content that you post to the Service does not and will not violate any law or infringe the rights of any third party, including without limitation any Intellectual Property Rights….. It is important that you understand that you are in the best position to know if the materials you post are legally allowed.  We therefore ask that you please be careful when deciding whether to make User Content available on our Service, including whether you can pin or re-pin User Content on your boards.” 

 

Then they are kind enough to provide users with links to materials which will help you learn all you ever wanted to know about copyright and fair use.

 

Basically, under the new terms, if a Pinterest user plans to use the “pin it” button to pin work from third party websites (and, if we are being honest here, this is precisely what the site was intended for in the first place and what the vast majority of people’s pins consist of), that user must first analyze and determine if each pin might violate someone’s copyrights.  In other words, for you to use Pinterest for it’s main purpose, you must stop, read, learn, think and play like a lawyer.   You must first decide whether your pin or re-pin would be deemed by a court to be “fair use” of whatever image you are pinning.  As I stated in my original post, determining what constitutes “fair use” can be a pretty complex and confusing analysis that is extremely fact specific and must be done on a case by case basis.  That is really not what I want to be doing when I just want to pin pretty pictures.  Do you?  And even if you do read the materials and conduct the fair use analysis can you be sure that your pins fall under fair use? 

 

All I know is that I’m a photographer AND a lawyer and I’m not even sure my pins will be deemed fair use in each instance.  Yeah, yeah, I know, I’m not a copyright expert so what do I know? Well, this time I did turn to an IP expert for some back-up.  One that knows her stuff.  I called India Vincent, an attorney with the law firm of Burr & Forman, LLP in Birmingham, Alabama.   India is the person I turn to when IP issues arise in both my work as an attorney and a photographer.  We talked about Pinterest and we talked about my blog.  When I asked her how I am supposed to figure out if my pins constitute fair use, this is what she said: 

 

 “Fair use is tricky because it is so fact specific.  Whether or not something is a fair use depends on the purpose of the use, the nature of the copyrighted work, the portion of the copyrighted work that is used, and the effect of the use on the potential market value for the work.  Any number of facts can alter the balance of these factors and change whether or not something is a fair use.  The work that is pinned, the way in which it is pinned, the commentary associated with the pinned work and other factors can all influence whether a particular pin is a fair use.”

 

Yep, like I said, rinse and repeat.  India’s response only confirmed for me what I stated in my original blog post  - that fair use is tricky and complicated.  And as I said before, this doesn’t give me much comfort that any fair use analysis I conduct before I pin something is going to be accurate or that a court would agree with me. Yet, this is exactly what Pinterest is asking us to do if we plan to pin third party content.  After my conversation with India I’m more convinced than ever that pinning works that are not your own, whether it’s an original pin or a re-pin, is still risky (and don’t get me started on the licensing issues involved in posting and re-pinning third party content).  So, I was right to be concerned.  And I still am.

 

But , as Doctor Phil says, “do you want to be right or do you want to be happy?”  So now what?

 

Well, I do want to be happy and as such I’m tempted to just pin away like everyone else.  But I want to remain happy.  And knowing that I might be violating someone’s copyrights by pinning won’t make me happy.  Being sued will make me just downright sad.  And mad.  And you don’t want to see me sad and mad.  I get this little eye twitch and my mouth turns down like a sea bass.  It’s not pretty. 

 

But giving up on Pinterest altogether won’t make me happy either.  So, call me a doormat, or maybe just naïve, but I’m still giving Pinterest  some time to figure this out.   I will continue keeping my account.  At least now I can pin my own work without being labeled “tacky” (well, at least not for pinning anyway), and I can pin work for which I have permission from the creator to pin.  I might even pin stuff where I feel 99.9% sure that my use would be deemed fair use (but don’t look for much of that because I’m not sure I can trust my own analysis of fair use to be that sure).  Meanwhile, I am asking, begging and pleading with Pinterest to get all of those brilliant and creative minds that reside over there in Palo Alto in the same room with the legal minds.  Order a lot of coffee and sugary snacks to keep everyone awake and come up with some substantive changes to the way content on the site is pinned, displayed and shared so that it doesn’t feel like, smell like or sound like infringement.  I want to use the site as originally intended.  I liked being able to pin photos from all over the web to my boards.   My boards are now pretty bare.  Sniffle, sniffle. 

 

Basically, Pinterest, keep as much of the beauty and appeal as you can while making changes so that I can pin from around the web without taking the risk for us both (yes, the indemnity language is still there.  As a lawyer I know that it needs to be, but man, don’t tempt me with a beautiful site that encourages third party pinning and the tools to use it for such and then tell me if I use it I’m on the hook for both of us.  That’s just …. just…not right IMO!).   

 

Ben, I thought we had something going here and that you were going to come up with something that protected artists and users a little better. I’m beginning to wonder if that’s even possible.  Show me that it is.  I’ll wait for you.

 

15 Comments

  1. by Lee Anne on March 30, 2012  1:51 am

    Thanks for your blog posts on Pinterest. I read both. (Are there only 2?) As a graphic designer and a print production manager, who's been working for publishers for years, I've dealt with more than a few tricky copyright issues along the way — with my own work as well as with the work of others. I've been asking myself the same questions you have as I've blithely been pinning away after joining Pinterest a little more than a week ago.

    Ostensibly, I joined because I wanted a forum for promoting my own work. I have an Esty shop where I'm selling designer greeting cards. I was crestfallen when I read in your previous blog that Pinterest discouraged that, but I'm very pleased they have changed their minds.

    As to the matter of copyright? I'm not a lawyer, so you'll probably blow me right out of the water with your counter argument, but I say anyone can pin anything they want of mine, because, as long as the image links back to me in some way, I don't believe they are breaking any laws. They are PROMOTING me. And, no, I don't believe that the large thumbnails that Pinterest provides are tantamount to "original" works. Maybe it's just me, but I DO go to the source to see the original image. It's easy to do in Pinterest. (I think the ability to click through is their ace in the hole, their chief argument before the Supreme Court. [If it comes to that.]) I want to see the enlargement. I also want context. I don't do it with everything, but when it comes to works of art, I want to know something about them. And though I haven't been very consistent about it in these learning stages, from now on I give credit at the very least, an URL at the most. Beyond that, it's just a matter of minding my copyright Ps and Qs.

    This is what I've found in my years in bumping up against copyright law in the course of my work:

    1. If you make money off of someone else's work, you have to get permission for it. Period.
    2. If you use someone else's work without giving credit, you're in trouble.
    3. If you use someone else's work inappropriately without expressed permission, you're in trouble.

    Beyond those glaring infringements of the law, the rest is a quagmire of gray swamp matter.

    Copyright law used to be cut and dried, written in stone, as immutable as the Pyramids, (yet, still as indecipherable to us artistic types as a rune stone); but we were content in the knowledge that the right people with as much a vested interest in getting our work out there as we were, would help us out. After all the law was created in cooperation with an unchanging top-down oligarchy of publishing. If you wanted to see, hear, or read something, you had to either make it yourself, get it from someone you knew, get it through some "free" outlet like a university, or "rent" it from a library — or acquire it for your very own by buying it from some member or submember of the Publishing Oligarchy (which, for us visual types, includes galleries and photo agencies). The Oligarchy set the rules and standards for good acquisition behavior, and pushed the laws that supported them. By the same token, the law protected YOU if you reversed the process, to be seen, heard, or read at the alter of the Oligarchy. Abuses aside — and the lonely useless years for most, banging away at their opuses or slaving away in their garrets, never to have their work see the light of day — it was all very nice for everyone involved.

    Until the Internet.

    To say the Internet is organic has become cliche, but it is. It's constantly adapting to change, looking for new ways to survive and propagate. The law, as you well know, has a hard time dealing with organic change-y things. In efforts to keep up with all the paradigm shifts that have been occurring in the publishing industry in the last 20 years, copyright law hasn't kept up any better than the entities it tries to protect.

    For creative types like us at the bottom of the food chain, it has been a mixed blessing. It's nice when we get paid for what we do. Even nicer when we can count on that kind of support, plus the credit it gives us. But what's nicer is when the whole world has the opportunity to plug into what we do. Easily. First hand. The Internet has given us that opportunity in spades. The Internet may seem like the lottery — huge, arbitrary, like someone you don't know, who lives in his car, who suddenly wins $500 million after playing only once when you've been playing every single week — but it's never been easier to carve out a little niche for yourself in some obscure corner of the Internet and get a following.

    Am I right, Ms. Blogger?

    Yet, as with everything, there's a down side. The industry I'm in, the work I do, is in a downward spiral. I'm in print publishing. I design books. I'm just holding out until I can retire in a few years. No, I do not subscribe to the view that the Internet is killing the book. The book — I mean the physical thing, made out of paper and cardboard — is still a portable multimedia device, whatever Apple or Amazon have to say about it. But I design textbooks, and, sadly, they ARE dead. Or soon will be. In a few years, they'll all be in the Cloud, interacting with Wikipedia.

    Publishing's dead too. At least the way we know it. At least the way the law understands it. And in all this turmoil, Pinterest has dived into the breach. I think they've done pretty well, considering. Yeah, they're walking a picket fence, and we're (as in scofflaw me and not you) are along for the ride. But I believe in it. Like you, I think their intentions are honorable. The execution is a little wobbly, and, yes, maybe I should err on the side of caution and bow out until they get the kinks worked out. (I DO understand the consequences after all. I can't plead ignorance.) But because I DO understand, I think I can make some intelligent choices that won't get me into trouble. As in my 3 rules above. If I give credit, play nice, and don't try to make a profit off someone else's sweat and tears, I probably won't get into trouble.

    That sounded lame, didn't it? Like Denial with a capital "D."

    OK. You're right. I should stop pinning, but I'm just having too much darn fun. And in the end, I think Pinterest does more to promote people's work than it does to infringe upon it. I don't think I'm the only one that thinks that either. There are probably a lot of infringed artists out there infringing on Pinterest as we speak.

  2. by Cathe on March 30, 2012  4:24 pm

    I'm not convinced Pinterest can come up with terms that will make pinning anything other than your own work acceptable. Copyright law has to catch up to the digital age first and figure out what Fair Use means in that context. Given their TOS isn't all that different from most other services, many of which I don't use for that reason, Pinterest is the most visible tip of the iceberg right now. It might be what finally drives some much needed work on Copyright law, but I'm not holding my breath :-).

    I do think there are things they can do to mitigate the concerns but it means changing their technology. They should not be storing full sized photos, not stripping the EXIF data and should force pins to contain the original location information so attribution and links are correct. Being able to re-pin at will is fun, but wouldn't correct attribution mean more people would give permission to pin? I know I would consider pinning things I own if I was sure all the data stayed with the photo (at least on their site) and re-pinning wouldn't lose where it came from so it would drive traffic to my site.

    I've enjoyed reading your posts and have passed links on to may friends and colleagues. Here's hoping Pinterest continues to work on this.

  3. Pingback : If Emily Posted – What About Bob? | alexandrawrote

  4. by Kal on March 31, 2012  1:54 am

    I'm with you.
    I kind of got dazzled by Ben and his charming ways, but the changes aren't enough to make me feel safe on Pinterest. So I'm happy I deleted my boards months ago and I'm happy to be on to other things. I'd like to keep my own work off Pinterest and think there should be an opt IN instead of cheap no-pin code. I also thought commercial use was banned...??

    I am looking forward to watching this unfold from a distance and hoping no other creators get hurt in the process.

  5. Pingback : If Emily Posted – What About Bob?

  6. by Ellen on April 2, 2012  9:56 pm

    I read the previous article with alarm, republished parts of it plus the link (please forgive) for the other "shelter bloggers" who read my blogs. Many of these bloggers use others' photos on their own blogs without attribution or permission as well. I became so alarmed that I immediately deleted my own Pinterest boards as well as the links to follow me there from my blogs.

    Yesterday I saw the article on Ben Silberman in my husband's copy of FORTUNE magazine which suggests that you are now a "Pinterest cheerleader." I made it my business to find your blog and read your followup. I am staying off for now, too. Thanks for making a legal tangle clear for the rest of us.

    I am publishing the permalink to this post so that the others can read it for themselves.

    Ellen Thompson Shook

  7. by Season on April 3, 2012  5:39 pm

    HI Kirsten, love to hear your opinions on pinterest! I was wondering what you thought about the private pin board option they are considering. If I am pinning images that inspire me on my private boards(when they are available), does that conflict with the law? Or violate the artists wishes? I know you are not a copywrite expert, but I would love to hear your thoughts on that. Thanks for the posts!

  8. by Martha Jeffery on April 8, 2012  8:58 pm

    What if you only post blog posts to pintrest should you be worried then? What about art/project ideas? I deleted my pintrest but other than one photo that was what I had pinned to my boards.

  9. Pingback : Pinterest, Thy Name is Fair Use | DuetsBlog

  10. by Christy on April 19, 2012  2:06 am

    Thanks ;) I have pinned this blog to Pinterest now (with your approval, of course). So I'm talking to family and getting their thoughts about my earlier comments to you and someone says this "Yes, but it's your responsibility to know what's right and wrong." Which kinda sounds like their new terms, right? First it was: "YOU are responsible for everything and we are responsible for nothing except providing you with an awesome website that makes putting all your ideas in one place easy." Now it's: "Here. We have provided you with a link to explain the law to you. Please read it and conduct a mental system of checks and balances in your head every time you plan on using our incredibly awesome site. We are still not responsible for anything and now have even more ground to stand on because we 'educated' you." Thanks for hanging a girl out to dry Pinterest! Honestly though, it's making me kind of mad. How can users of the site be upheld to and expected to follow the law to the tee when we're on a website that basically condones the breaking of said law? Isn't there something wrong about that? It's like why do I want to keep promoting Pinterest (and subsequently making 'those' people rich) when they seem to not give a proverbial care about me or any of their 'customers'? My family member continued with "You can look that stuff up anywhere, they just give you a space where you can keep it all in one place." EXACTLY!...and it's AWESOME! I mean the average person (myself included) does not know the ins and outs of copyright law. As an average person I am inclined to say "What is someone else's material?" I'm sure that recipe I found on that blog over there the other day counts. What about the picture I found in a search engine of a beautifully decorated room that I re-pinned as inspiration for myself, that turns out to belong to a major t.v. network? How about that article from a magazine I pinned onto my health and fitness board as inspiration for the people who I know follow me? The list goes on and on! I'm sorry Pinterest, as much as I love you and all your shiny-ness, I'm seriously outright leaving if you don't change. I have two children to support and am not going to shell out thousands of dollars because of the party ideas I got off your site. The time we had together was beautiful, thank you.

  11. by Todd Rafferty on April 25, 2012  11:20 pm

    Curious question, under fair use, wouldn't I be able to post your picture up online as long as I was critiquing it in some fashion? You're required to leave a comment when you pin things. Most people don't use the comment field correctly, but isn't that all you would need to do to cover your bases?

    • by kirsten on April 26, 2012  12:21 pm

      That would be one of the factors the courts would look at.

  12. by santafetraveler on May 2, 2012  2:14 am

    Thanks for this post. I too, took my boards down when the rights issue came up and I'm still on the fence. I'm more a permission than forgiveness kind of person. I'm going with pinning my own stuff and that of friends for a while and see what develops. Personally, I think if you pin respectfully and give credit, it can help the pinee, but then, the law is a ass!

  13. by Jeanne Roby on May 16, 2012  12:27 pm

    Good Morning-I am a little late to the party (not unusual for me, heehee). I recently decided to try to start a photography business and was digging arounf the web for a toehold on what type of liability I might have (who could sue me and why) and ran across your blog post. I love the fact that you write in converstional format. Since you have a background in law, you could have easily slipped into *yawn* "legalese". I know this is not the be all and end all definitive copyright blog-but it has given me pause to think around the subject. ALL law has become so blurry that a layperson is fearful to even step from their home. Thanks for sharing your thoughts. I feel like we were sitting over a cup of coffee discussing the pros and cons of pinning. Thanks - if you were in Ohio I would invite you to have an actual cup :)
    JR

  14. by Tina on August 10, 2012  3:24 am

    Firstly, I am a pinterest lover. I am also a created who has had my original works pinned. It does piss me off when I see them, and the link mentions nothing about my website, or even anything about me. I love seeing my stuff pinned, but why can't people direct the link to the proper site, instead of giving another hit to Google? Those people, I think should be sued. If you can't be bothered to pin correctly, if you're too lazy, consider how much work I put into the whose-y-what-sit that I created for content on my website and received no money and no traffic for? That irritates me. And pinterest hasn't addresses that. Sure, I'm all for changing the copy write laws to move towards the times of technology, but if it's not stipulated that the creator gets the link, than why create works of original art in the first place? I might as well steal other peoples stuff. Thanks for the post. Great information. Lovely pictures. I'd pin them, but I have a think about copywrite laws. I don't pin even with permission.

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